General Terms and Conditions

Preamble

These General Terms of Use (hereinafter the "General Terms and Conditions of Sale and Use" or "GTCSU") are intended to define the terms of subscription to and use of the User Account of the Kabeen application provided by KBINE.

These General Terms and Conditions of Sale and Use (the "GTCSU") are entered into between:

KBINE, a simplified joint-stock company registered with the Nanterre Trade and Companies Register under number 904 867 223, with its registered office at 199 Bureaux de la Colline, 92210 Saint-Cloud, hereinafter referred to as "KBINE", and

the Customer, acting in the course of its business for professional purposes, on its own behalf and on behalf of its Users, hereinafter referred to as the "Customer".

And concerning the provision to the Customer of a SaaS platform developed and marketed by KBINE under the name Kabeen (the Application).

KBINE and the Customer are each a "Party" and together the "Parties".

The Customer's subscription to the Solution is carried out exclusively online in the form of a subscription-based licence to use. The Customer is invited to read these General Terms of Service, communicated online by KBINE, carefully before accepting them. These GTCSU also govern any use of the Solution during a trial period (POC).

Article 1 - Purpose and scope

1.1 - Purpose

The Kabeen Application is published under the responsibility of KBINE.

Any use of the Application must comply with these GTCSU.

The purpose of the application is to provide the Customer with access to the following services:

• Mapping and documentation of enterprise applications and data flows
• Inventory and documentation of business data
• Inventory and documentation of infrastructure and networks
• Measurement of usage, user experience and key application indicators
• Production of information system diagrams

Any document other than these general terms and conditions, in particular catalogues, brochures and advertisements, has only an informative and indicative value.

The Customer expressly acknowledges that these GTCSU were communicated to it prior to the signing of the quote, in accordance with the provisions of Article L. 441-6 of the French Commercial Code.

The applicable terms are those in force on the date the quote is issued.

These GTCSU apply automatically unless otherwise contractually agreed between KBINE and the Customer.

1.2 - Contractual hierarchy

The Contract formed between KBINE and the Customer consists, in order of priority, of the following documents:

1. any specific terms set out in the Quote
2. these GTCSU

In the event of a contradiction between one or more provisions of the contractual documents making up the Contract, the provisions of the higher-ranking documents shall prevail.

The Parties agree that no handwritten annotation added by the Customer shall have any value, unless expressly accepted by KBINE. It is specified that the Contract constitutes the entire agreement between the Parties as to its subject matter and prevails over any other general terms of purchase, sale or service of either Party, or over any commitment, declaration or other prior agreement between the Parties having the same subject matter.

Performance of the Contract necessarily implies that the Customer has unreservedly accepted these GTCSU.

1.3 - Acceptance of the GTCSU by the Customer

The GTCSU are communicated and submitted for the Customer's acceptance when the Customer Account is created. By creating an Account and/or signing the applicable Quote, the Customer acknowledges having read and unreservedly accepts all of these GTCSU.

The Customer warrants in this regard that the natural person accepting these GTCSU on the Customer's behalf has full capacity and all powers to bind the Customer under these GTCSU. The Customer may obtain a copy of the applicable GTCSU on a durable medium, namely in PDF format, on the Website, and may consult, store or print it at any time.

The Customer acknowledges having carried out, before committing, all customary verifications and declares having received all information necessary to assess the Solution's compliance with its own internal needs. Access to and use of the Solution entails the express and unreserved acceptance of all the GTCSU by the Customer and the Users.

1.4 - Changes to the general terms and conditions

The GTCSU may be amended by KBINE, which shall notify the Customer of any amendments thirty (30) days before they enter into force. This notification must be communicated in writing, by email and on the Website.

If the Customer disagrees with one or more amendments, the Customer may terminate these GTCSU free of charge and as of right in accordance with article 4.3. Such termination shall be the Customer's exclusive remedy.

If KBINE does not receive a termination request within thirty (30) days following notification of the amendments, the Customer shall be deemed to have accepted these amendments.

Article 2 - Access and use

2.1 - Access to the Application

The Application is accessible to Users in SaaS mode via a secure TLS (HTTPS) connection from the "Sign in" button or directly from the URL https://app.kabeen.io

To use the Application optimally, it is recommended to:

• Have a computer (PC or Mac) with internet access at a minimum speed of 512 kbit/s;
• Use one of the recent versions of the Google Chrome, Microsoft Edge or Mozilla Firefox browsers.

The use of other browsers or older versions may not be fully compatible, and KBINE cannot then guarantee the optimal operation of the Application.

The Customer must create a workspace in order to access the Services. Creating a workspace requires the User to provide a valid email address that the User owns, as well as a password, which will constitute the User's credentials. If the email address is not valid and/or if the User does not own it, KBINE cannot guarantee the confidentiality of the User's data.

2.2 - Use of the Application

This right to use the Application is granted on a non-exclusive, personal and non-transferable basis, worldwide and for the term of the Contract.

This Contract does not entail any transfer of intellectual property rights attached to all or part of the Application, which remain the exclusive property of KBINE or its licensors.

KBINE reserves the right, at its discretion, to release new versions, updates or upgrades of the Application, which will be made available online as soon as they become available. It is expressly agreed that only the latest version of the Application will be accessible to the Customer.

2.3 - Suspension of the Right of Use

KBINE reserves the right to suspend the Right of Use of the Customer or any User

(i) in the event of a breach of the Customer's Data or a security flaw, in order to protect the Customer's Data until the breach has ceased,

(ii) for any breach by the Customer or its Users of the GTCSU, or

(iii) for any inappropriate act or omission affecting the Solution, any other User or the Customer.

In the event of suspension of the Right of Use, KBINE shall inform the Customer by any means and shall communicate the reasons for such suspension, unless security reasons or legal prohibitions justify that the reasons for the suspension not be disclosed.

To the extent possible, and except in cases of urgency, KBINE shall grant the Customer a period of fifteen (15) business days from notification by KBINE of the breach in question to remedy it, before suspending the Right of Use of the Solution. This period may be extended with KBINE's written consent. In this case, the Parties shall cooperate in order to resolve the issue within a reasonable timeframe, and KBINE shall restore the Customer's access to the Solution as soon as possible.

During any suspension period attributable to the Customer or any of its Users, the Price remains fully due. If the suspension results exclusively from a breach by KBINE, amounts already invoiced shall, at the Customer's request, be suspended or credited prorata temporis for the duration of the suspension.

2.4 - Restrictions on the Right of Use

The Customer is authorised to use the Solution exclusively within the scope of the Right of Use and within the limits of the applicable Plan, strictly for professional purposes internal to its business. In this respect, the Customer undertakes not to, and to ensure that its Users do not:

1. Unauthorised provision Assign, pledge, encumber, share, rent, sell, disclose or otherwise make available the Solution (or the login credentials granting access to it) to any unauthorised third party.
2. Creation of competing solutions Design, create or allow a third party to design or create any computer program, service or feature similar to the Solution, in violation of KBINE's intellectual property rights.
3. Non-compliant use Use the Solution for any purpose other than its professional use, or for any purpose unrelated to the Customer's strict professional activity.
4. Reverse engineering Reverse-engineer, disassemble, decompile or attempt to discover all or part of the source code of the Solution, except within the limits permitted by law (Articles L. 122-6-1 et seq. of the French Intellectual Property Code, where applicable).
5. Unauthorised reproduction and modifications Copy, reproduce, manufacture, imitate, create derivative works, translate, adapt, localise, port or modify in any way the source code and/or the structure of the Solution's database, nor engage third parties to do so.
6. Load testing Carry out, directly or indirectly, load testing or any massive sending of requests likely to impair the performance or availability of the Solution, without KBINE's prior written consent.
7. Infringement of intellectual property rights Infringe, by any means whatsoever, KBINE's intellectual property rights relating to the Solution or its components.

Article 3 - Financial terms

3.1 - Price

In consideration of the Right of Use of the Solution and Support Services, the Customer undertakes to pay KBINE the price applicable to the Plan chosen by the Customer. Unless otherwise expressly agreed by KBINE, all amounts payable are due in euros. All prices are exclusive of tax. Unless otherwise agreed in writing between the Parties, each of them shall bear its own costs under these GTCSU.

The applicable VAT rate is the rate in force on the Effective Date. Any change to this rate will be reflected on invoices, without the Customer being able to challenge the new rate or invoke termination of the Contract.

The Customer acknowledges that, unless otherwise stated in the Quote and validated by KBINE, any commercial discount or preferential pricing condition granted upon initial subscription to the Subscription is not automatically renewed for subsequent periods. However, upon expiry of the Contract, the Parties may discuss in good faith any potential evolution of pricing conditions with a view to adjusting them for the renewal period.

3.2 - Invoicing

The Customer undertakes to inform Kabeen, before signing the Quote, of any specific requirements relating to electronic invoicing.

The invoice is sent to the Subscriber electronically via the Owner User account when payment is made online and by email (i) monthly for monthly Subscriptions, (ii) annually for annual Subscriptions if the Subscriber is eligible. For any annual or multi-year Subscription, the invoice will be issued during the first month of the Subscription of the current annual period.

3.3 - Payment

Invoices must be paid on the date of issue by SEPA direct debit or bank transfer.

The Customer acknowledges that, unless otherwise stated in the Quote and validated by Kabeen, any payment facility offered by KBINE upon subscription will not be automatically renewed for the following Subscription period.

By subscribing to the KBINE Services, the Customer authorises KBINE or its agent to invoice the Service Costs on a recurring basis (monthly or annually depending on the Subscription selected) and to charge the Customer's preferred payment method. This authorisation continues for the duration of the initial Subscription and its successive renewals until termination of the Contract, as defined in article 4.3 of these GTCSU.

If the payment method used as part of the Subscription is expired or if the account information is changed, or if for any reason a debit is rejected, the Customer undertakes to immediately update its account by providing KBINE with a valid payment method.

Any invoice not contested within thirty (30) days of its date of issue is deemed duly accepted by the Customer. The Customer may not use set-off or deduction mechanisms or withhold sums owed to KBINE under the GTCSU.

3.4 - Late payment

In accordance with Article L. 441-6 of the French Commercial Code, any sum unpaid by the due date shown on the invoice automatically gives rise, without formality or prior formal notice, from the day following the payment date shown on the invoice, to the application of late payment penalties.

Penalties are calculated on the inclusive-of-tax amount of the unpaid sums, by applying the higher of the following rates: 1.2% or three times the legal interest rate. This rate is calculated prorata temporis, per period of one calendar month, with any month started counted as a full month. In any event, payments received are applied to the oldest services rendered for the benefit of the Customer.

In the event of late payment, KBINE reserves the right at any time to suspend or cancel the performance of successive services in progress. In the case of payment by instalments, non-payment of a single instalment will result in the immediate enforceability of the entire debt, after formal notice sent by registered letter with acknowledgement of receipt.

A Customer in arrears is automatically liable to KBINE for a flat-rate compensation for collection costs, the amount of which set by decree is 40 euros. If the collection costs incurred exceed this flat-rate compensation, KBINE may claim additional compensation, upon justification. However, KBINE may not invoke the benefit of these compensations in the event of safeguard, reorganisation or judicial liquidation proceedings being opened against the customer.

3.5 - Price indexation

The Prices stipulated in this Contract are revised automatically on each anniversary date of the Contract, by applying the variation of the Revised Syntec Index published for the last twelve (12) months known on that date.

Such revision shall in no case lead to a reduction in Prices; the adjustment applied may therefore not be less than zero per cent (0%).

If the Revised Syntec Index ceases to exist or is no longer published, no indexation will be carried out, except by prior written agreement of the Parties on a replacement index.

Article 4 - Term and termination

4.1 - Term of commitment

These General Terms and Conditions of Sale and Use (GTCSU) come into force as soon as they are expressly accepted by the Customer, whether at the time of account creation or by signing the applicable quote.

4.2 - Renewal

Unless otherwise agreed in writing between the Parties, the Contract is concluded for an initial term of one (1) year. At the end of this period, the Contract will be tacitly renewed for successive periods of one (1) year, on the same terms.

Each Party may, in compliance with the notice and procedures provided for in article 4.3, notify its intention not to renew the Contract, which will take effect at the end of the current period.

4.3 - Termination

4.3.1 - Termination for convenience

Each Party may terminate its commitment at the end of any contractual period, subject to giving written notice of at least two (2) months before the end of the current period.

This termination may be carried out by email by either Party, KBINE writing to the Customer at the Customer's email address as indicated on its account, and the Customer writing to KBINE at the following email address: contact@kabeen.io

The termination will take effect at the end of the current contractual period. To this end, no sum relating to a period already started will be reimbursed. In other words, any commitment period already started remains due in full.

Upon receipt of the termination request, KBINE undertakes to: (i) interrupt the billing of the subscription at the end of the month during which the request was made, (ii) deactivate, from the 30th day following the request, access to the Customer Account and User Accounts, (iii) initiate the procedure for deleting the Customer's Data in accordance with the provisions of the Data Processing Agreement.

The rights and obligations of the Parties which, by their nature, survive the termination of the GTCSU shall remain fully in force after termination.

4.3.2 - Termination of the GTCSU in the event of breach by a Party of one of its obligations

Each Party may, in accordance with Article 1226 of the French Civil Code, terminate this Contract automatically in the event of a serious breach by the other Party of any of its contractual obligations remaining unremedied within fifteen (15) calendar days from receipt of a formal notice sent by registered letter with acknowledgement of receipt specifying the breach invoked.

Failing remedy within this period, termination will take effect automatically upon expiry of said period.

4.4 - Reversibility and return of data

Upon expiry or termination of the Contract, or on simple written request of the Customer or any third party mandated by the Customer (hereinafter the "Successor"), at any time during the contractual relationship, KBINE undertakes, within a maximum period of thirty (30) business days, to make available to the Customer all of the Data hosted in the Service, in a complete and integral state.

This return is carried out without additional charge in the open and interoperable format most suited to the nature of the Data; for guidance and unless otherwise instructed by the Customer, the following formats will be used:

• Structured data: CSV or JSON,
• Office documents: original format (PDF, DOCX, XLSX, etc.),
• Binary attachments: native binary format

Any future change to the formats offered will be notified to the Customer.

The reversibility request must be made by the Customer to KBINE as follows: by email to contact@kabeen.io

In addition, KBINE will provide the Customer with reversibility support including:

1. The provision of documentation describing the functional architecture of the Data
2. The provision, for a maximum of five (5) business days, of a technical contact to answer questions from the Customer or its new service provider and to ensure a transfer of skills on the Data export procedures;

Beyond this included scope, any additional assistance will be subject to a prior quote accepted by the Customer based on the rate in force.

After the aforementioned thirty (30) day period, KBINE reserves the right to delete the Customer's Data. The Customer who has submitted a termination request therefore undertakes to carry out the archiving operations itself.

Article 5 - KBINE's obligations

5.1 - Availability

KBINE undertakes to make the Solution available to the Customer under availability conditions of 99.9%.

However, access to the Application may be temporarily unavailable for technical reasons, in particular for maintenance operations as described in article 6.

KBINE accepts no liability in the event of:

• Temporary inability to access the Application due to technical problems on the Customer's side (for example, malfunctions of the Customer's equipment)
• Unavailability or overload or any other cause preventing the normal operation of the telecommunications network used to access the Application.
• Direct or indirect damage caused to the Customer, of whatever nature, resulting from unlawful access to or abnormal use of the Application.
• Loss or compromise of access credentials, as well as identity theft, when these incidents result from a failure by the Customer to secure access information

If the availability of the Solution in a given month is less than 99.9%, KBINE will apply a penalty equal to 10% of the monthly price invoiced to the Customer. For Customers committed annually, the monthly price used to calculate the penalty is determined by dividing the annual price by twelve (12).

In the event of renewal of the Solution, the SLA penalties will be deducted from the amount due on the next invoice. If the Customer does not renew its commitment, KBINE will issue a credit note in favour of the Customer corresponding to the SLA penalties. The SLA penalties thus provided constitute the Customer's sole and exclusive remedy and KBINE's sole and exclusive liability in the event of a breach of the service level.

The status and availability information for the Solution is made available to the Customer by KBINE through the URL https://status.kabeen.io/

5.2 - Updates

For the duration of the Contract, KBINE provides at no additional cost all corrective, security or performance updates as well as developments which do not have the effect of extending the scope of features subscribed to by the Customer at the date of signing the Contract.

Any set of features, application component or optional service introduced after this date and exceeding the subscribed functional scope is qualified as an Additional Module. The activation of an Additional Module only takes place with the prior written consent of the Customer and is the subject of a separate quote; failing acceptance, the Customer continues to benefit from the evolving Core at no additional cost.

The GTCSU shall apply to all Updates provided by KBINE to the Customer.

KBINE shall in no case be required to carry out any developments requested by the Customer.

5.3 - Hosting

KBINE provides the Customer with the hosting environment for the Solution and the Customer's Data on servers subcontracted to Google Cloud Platform within the European Union.

Information relating to subcontractors, including their location, is regularly updated and can be consulted in the list of subcontractors made available to the Customer.

5.4 - Commitment to correct Defects

KBINE cannot guarantee that the Solution is free from any contingency, design or use defect, but undertakes to remedy Defects with the diligence of a professional in the sector.

The Solution is made available to the Customer "as is" without specific adaptation measures, and cannot meet all of the Customer's specific needs. KBINE does not guarantee the Solution's ability to achieve any objectives or results that the Customer may have set, and/or to perform any particular tasks that may have motivated the Customer's decision to enter into these GTCSU.

5.5 - Security

KBINE undertakes to implement all necessary measures in line with the state of the art to ensure the security of the Customer's Data hosted and stored in its computer systems.

KBINE undertakes to carry out at least once a year a penetration test by a qualified independent third party. If the Customer wishes to perform a security test of the Solution by its own means (for example, penetration tests), whatever the methods or scope, the Customer must obtain the prior written authorisation of KBINE.

Upon written request from the Customer, KBINE will provide the Customer with a summary report of the most recent penetration test, describing: the period and scope tested, the methodology used, and an anonymised summary of vulnerabilities classified by criticality level.

This document is communicated for strictly informational purposes to enable the Customer to assess the overall level of security of the Platform; it remains covered by the confidentiality obligations of the Contract and may not be transmitted to third parties without the prior consent of KBINE.

Upon receipt of the detailed report by KBINE, a remediation plan is automatically triggered. This plan includes, for each vulnerability: the description, the criticality level, the corrective measure envisaged and the target deadline.

The target correction deadlines are as follows:

5.6 – Source code escrow

KBINE establishes and maintains, at least once a year, a complete and up-to-date archive of the Application's source code, its installation documentation and the infrastructure scripts necessary for its compilation and deployment.

The Customer may request delivery of the archive when it observes one of the following events:

a) Recovery or Liquidation, amicable or judicial, or equivalent procedure, of KBINE

b) Opening of insolvency proceedings resulting in the cessation of maintenance of the Application;

KBINE shall then transmit, within thirty (30) business days, the secure download link for the archive.

The Customer may use the source code only for its own internal needs, for the sole purpose of ensuring the use and hosting of the Solution. This measure, if it occurs, does not confer on the Customer any new intellectual property rights over the Solution. Furthermore, in the event of communication of the source codes, the Customer undertakes to preserve their confidentiality and not to infringe KBINE's property right.

Access to the "source code" by the Customer does not, by this fact alone, mean termination of this Contract.

5.7 - Audit of contractual compliance

KBINE shall authorise the Customer or an independent auditor designated by it to carry out audits to verify whether KBINE complies with its obligations under these GTCSU. KBINE will contribute to these audits as indicated in this paragraph. The scope of the audit may include in particular the on-site consultation, without delivery of copies, of internal documents concerning KBINE's security or business continuity policies.

If the Customer decides to carry out an audit as indicated above, it must notify KBINE in writing at least thirty (30) days before the audit and bear all costs and expenses related to it, such as auditors' fees, travel expenses, lawyers' fees, etc., as well as the time spent on the audit based on the average hourly rate of KBINE personnel who collaborated on the audit.

The audit must be carried out by an independent auditor of well-established reputation, not competing with KBINE's commercial activities. This independent auditor is chosen by the Customer and accepted by KBINE. The auditor must possess the required professional qualifications and is bound by a confidentiality agreement.

The frequency of audits is limited to one audit per year and must not disrupt KBINE's business. The audit may only be carried out during KBINE's business hours.

The Parties acknowledge that any reports and information obtained as part of this audit are confidential information.

In any event, any audit imposed by the Customer pursuant to this paragraph must not impede or otherwise disrupt the normal course of KBINE's business.

Article 6 - Maintenance and updates

6.1 - Scheduled maintenance

KBINE periodically plans and carries out maintenance work, in particular as part of the Updates of the Solution, in order to make new features of the Solution available or to correct Defects. KBINE plans its maintenance operations in order to minimise the impacts on the availability and functionality of the Solution.

6.2 - Unscheduled maintenance

KBINE may carry out unscheduled maintenance work at any time, in particular to urgently correct certain Defects. The Customer also acknowledges and agrees that legislative or technological developments may, at any time, render all or part of the Solution illegal or unsuitable. KBINE will then have the option of carrying out an unscheduled Update of the Solution.

6.3 - Notification

KBINE will notify the Customer of the date and time of scheduled maintenance interventions with two (2) business days' notice through the URL https://status.kabeen.io/.

If a maintenance operation requires interruption of the Solution, KBINE will carry out this interruption outside Business Hours, except for unscheduled and urgent maintenance.

Article 7 - Defects

7.1 - Classification of Defects

Defects are classified according to their level of criticality:

• Blocking Defect: designates any failure to execute a function or defect in the execution of a function making it impossible to use the Application or one of its critical features.
• Serious or Major Defect: designates any failure to execute a function substantially affecting the use of the Application and having a negative but non-blocking impact on the execution by Users of their tasks using the Application.
• Minor Defect: designates any other Defect.

The initial qualification of defects is carried out and documented by KBINE. The Customer may report any defect via technical support in accordance with the procedures defined in Article 8.

KBINE may only be held liable for Defects that are exclusively attributable to it.

7.2 - Notification of Defects

Upon receipt of the notification, KBINE acknowledges receipt and informs the Customer of the handling of the Defect. A defect tracking dashboard is accessible by the Customer via the URL https://status.kabeen.io/, allowing real-time monitoring of the status of the incident, the processing steps and the estimated resolution times.

Once the Defect has been resolved, KBINE undertakes to release, within a reasonable timeframe, a detailed analysis of the incident.

7.3 - Handling of Defects

KBINE will use its best efforts to restore the normal operation of the Application within the following average response and resolution times:

The defect response time runs from its notification by the Customer.

The resolution of a Defect means the technical resolution of the Defect or the implementation of a workaround allowing normal or slightly degraded use of the Application.

Article 8 - User support

These support terms and conditions relating to the Support Services (the "Support Conditions") apply to the support services offered by KBINE as part of the provision of the Solution provided for in the GTCSU.

An online support platform is available to Users at https://www.kabeen.io/en/docs in order to provide them with useful information for using the Solution as well as a chat channel. The use of the Online Support Platform is subject to the GTCSU.

The User may only submit support requests via the Online Support Platform. When making a request, the User must provide the diagnostic information necessary to process its request, including, without limitation, a description of the problem, the configuration and the network of the Customer and any relevant Customer Data. The User will communicate (chat, video) to answer questions and assist KBINE's support team as needed. Where necessary, KBINE's support team and/or any person authorised by KBINE for the purposes hereof may (i) access Customer Data and/or (ii) impersonate the User to access its environment, it being specified that such access will be limited in time and used only for the purposes of processing the User's request.

If KBINE considers that a support request is a feature request, KBINE may redirect the request internally or redirect the User to log this request with the product team to be considered for possible addition to a Solution Update, without KBINE being subject to any obligation of result in this regard.

KBINE will provide Customers with access to the Online Support Platform 24 hours a day, 7 days a week, for self-service assistance. The KBINE support team is available during Business Hours.

The Parties agree that all support provided by KBINE's support staff hereunder will be provided in French. Support in English is also available.

KBINE will provide the Support Services for as long as the GTCSU are in force, and will have no obligation to provide support services after the expiry or termination of the Contract.

Article 9 - Customer's obligations

9.1 - Payment of the subscription

The Customer undertakes to pay the subscription price in accordance with these GTCSU.

9.2 - Use of the Solution

The Customer undertakes to access and use the Solution in accordance with the legal provisions in force, the Documentation, these GTCSU, and only for the purposes of the Customer's professional activity.

9.3 - Liability

The Customer, on its own behalf and on behalf of its Users:

1. is solely responsible for the Customer's Data and assumes full responsibility for the nature, content, quality, accuracy, reliability, integrity, relevance and legality of the Customer's Data;
2. undertakes not to attempt to gain unauthorised access to the Solution;
3. shall refrain from sending or storing through or via the Solution any non-professional data and more generally any unlawful, obscene, defamatory data or data that is illegal or in breach of third-party rights, the protection of minors or privacy;
4. will make available to KBINE, in good time and at the Customer's expense, the technical data, information relating to the IT installations used, the files, documentation or any other information, instruction or resource that KBINE will need in order for the Solution to be made available to the Customer (including the credentials enabling the Customer to access the Solution);
5. will provide the information reasonably requested by KBINE and will ensure that this information is correct;
6. will ensure that no person other than Users has access to the Solution. In the event that the Customer becomes aware that another person is accessing it, the Customer shall inform KBINE in writing without delay of this incident and confirm this information by notification sent by registered letter with acknowledgement of receipt;
7. will take the necessary steps to ensure that all Users having access to the Solution become familiar with the GTCSU before accessing the Solution and comply with the resulting obligations;
8. will take all necessary precautions to guarantee the non-disclosure of Confidential Information to unauthorised personnel.

Article 10 - Intellectual property

10.1 - Intellectual property of KBINE

The Solution is a work of the mind within the meaning of the French Intellectual Property Code.

As such, KBINE is vested with all intellectual property rights to the Solution. KBINE owns and retains all rights and titles of intellectual property relating to the Solution, including all copyrights, patents, trade secret rights, trademarks and other related intellectual property rights.

The Customer acquires no ownership right or title of any kind over the Solution, except for the Right of Use. The Customer refrains from any act or behaviour that may directly or indirectly infringe the intellectual property rights to the Solution, as well as the associated trademarks.

Any use not expressly authorised by KBINE hereunder is unlawful, in accordance with the provisions of Article L. 122-6 of the French Intellectual Property Code.

The Customer must not remove, conceal or modify the copyright, trademark or any other property right notices affixed or attached inside the Solution.

10.2 - Warranty against eviction

10.2.1 - Defence obligation

In the event of a claim brought by a third party against the Customer on the grounds that the Solution infringes a third-party intellectual property right pre-existing the Provisioning Date, KBINE will defend the Customer and undertakes to pay or reimburse the Customer for all damages, costs and expenses that the Customer is ordered to pay to that third party by a final court decision rendered by a competent jurisdiction, or that are agreed by transactional agreement with KBINE's prior approval. This warranty will only be valid on condition that the Customer: (1) immediately informs KBINE in writing of this claim; (2) entrusts KBINE with the exclusive control of the contestation and settlement of the claim, including the right to settle, and (3) provides KBINE, at the latter's expense, with all assistance, information and powers reasonably necessary for the contestation and settlement of the claim. KBINE will only assume procedural or amicable settlement expenses that it has expressly accepted in writing.

10.2.2 - Exceptions The obligations incumbent on KBINE as stipulated in article 10.2.1 above are not applicable to damages, costs and expenses resulting from (1) any use of the Solution exceeding the scope of the Right of Use conferred by these GTCSU, (2) any modification or derivative work of the Solution carried out by or for the Customer, (3) the use of an obsolete infringing version of the Solution (or a component thereof) by the Customer after the release by KBINE of a non-infringing version, or (4) any use or combination of the Solution with any technology, software or computer hardware not supplied by KBINE (in particular a Third-Party Online Service), where the alleged infringement could have been avoided by using the Solution without that technology, software or computer hardware.

10.2.3 - Remedies

In the event of a claim subject to article 10.2.1 to which the exceptions provided for in article 10.2.2 do not apply, or if KBINE considers that a claim is likely, KBINE may, at its discretion: (1) confer on the Customer a Right of Use enabling it to continue to use the Solution or (2) replace or modify the Solution to make it non-infringing, provided that the replacement Solution is substantially similar to the Solution.

In the event that KBINE judges that these solutions cannot reasonably be implemented, KBINE may choose to terminate these GTCSU, in which case the Customer will be entitled to obtain a pro rata refund of amounts already paid to KBINE under the Right of Use for the current month. In the event that KBINE chooses one of the options of this article 10.2.3, the solution thus retained shall constitute the sole and exclusive compensation of the Customer for a claim of infringement of intellectual property rights.

10.2.4. Limits of liability

The provisions of this article 10.2 set the limits of KBINE's liability in matters of infringement resulting from the use of the Solution.

10.3 - Use of Customer Data

10.3.1 - Ownership of Customer Data

The Customer is and remains at all times the owner of the Customer's Data. The Customer undertakes to insert into the Solution only legal data which is not contrary to public order and morality.

The Customer refrains from uploading via the Solution data protected by copyrights, trademarks or any other property rights, without first having obtained all rights, permissions and authorisations necessary to (a) make this data available via the Solution and (b) grant KBINE the limited right to use this data for the purposes of these GTCSU.

The Customer warrants KBINE against any action based on the use of Customer Data and will bear the costs relating to KBINE's right of defence as well as those arising from any conviction.

10.3.2 - Limited rights of use of Customer Data by KBINE

In the context of the performance of these GTCSU, the Customer authorises KBINE to collect, store and process the Customer's Data, directly or by calling upon its subcontractors, solely for the purposes of (i) providing the Solution and Related Services under these GTCSU; (ii) monitoring, detecting, preventing, reducing or handling fraud, managing backups and security incidents or Defects, creating statistics on the use of the Solution, improving the Solution and Related Services and suggesting such improvements to Customers, and (iii) complying with KBINE's legal or contractual obligations.

Article 11 - KBINE's liability and insurance

11.1 - KBINE's liability

11.1.1 - KBINE's performance obligations

KBINE assumes an obligation of result with regard to achieving the availability objective of the Solution in accordance with article 5.1. Failure to comply with this threshold gives rise to the SLA penalties provided for in said article, to the exclusion of any other compensation.

KBINE undertakes to comply with the average response and resolution times of Defects defined in articles 7.3, subject to the cooperation of the Customer.

The above obligations of result are automatically reclassified as obligations of means when the failure observed results from an Exonerating Event, including: (i) a case of force majeure within the meaning of article 15; (ii) the failure of a third-party service, infrastructure or network outside of KBINE's reasonable control (e.g. cloud provider, telecom operator, browser extensions); (iii) non-compliant use of the Solution, a configuration defect or any cause attributable to the Customer or its Users.

11.1.2 - Limitation of liability

The Customer acknowledges that the Solution is solely intended to provide it with an overall view of its information system, without this provision being assimilated to a consultancy service of any kind whatsoever. KBINE may not be held liable for the decisions and choices of the Customer made on the basis of the Solution.

The Customer expressly acknowledges that KBINE may not be held liable for service interruptions of the Solution or for any damage related to any case of force majeure as recognised by French law and courts, or due to the Customer (or a User) or to a third party.

11.1.3 - Nature of damages

KBINE shall only be liable for the compensation of direct and foreseeable damages directly attributable to a breach by KBINE of one of its contractual obligations under these GTCSU. Consequently, KBINE may under no circumstances incur liability for indirect losses or damages, nor for any loss of profit, loss of operation, loss of turnover or earnings, loss of customers, loss of opportunity. The Customer undertakes for its part to take all necessary precautions to reduce any prejudice that may result from the use of the Solution. Any damage suffered by a third party is indirect damage and consequently does not give rise to compensation.

11.1.4 - Amount of damages

The amount of compensable damages that KBINE may be required to pay to the Customer is limited, all damages combined and cumulated, to the price actually received by KBINE under the Customer's Right of Use of the Solution for the twelve (12) month period preceding the occurrence of the operative event(s) of the damage in question (or for the duration of the GTCSU in the event that it is less than twelve (12) months). This article shall survive the termination or rescission of these terms for any reason whatsoever.

11.2 - Insurance

KBINE undertakes to maintain in force a professional civil liability insurance policy covering damages that may occur during the execution of the GTCSU.

Article 12 - Confidentiality

12.1 – Definition of "Confidential Information"

"Confidential Information" means all information and data of any kind (financial, commercial, industrial, scientific, technical, patentable or not, etc.) belonging to or held by one of the Parties (hereinafter, the "Disclosing Party") and communicated or made accessible to the other Party (hereinafter, the "Receiving Party") in the context of the performance of the Contract, in any form whatsoever (written, oral, visual, electronic or on any tangible medium).

The following shall not constitute Confidential Information, information which the Receiving Party can prove, with written supporting documents:

1. that they were already in its possession at the date of their communication;
2. that they were in the public domain at the time of their communication, or fell into it subsequently without fault on the part of the Receiving Party (the lifting of the confidentiality obligation being valid only for the information thus publicly disclosed and from the date of said disclosure);
3. that they were obtained from a third party legitimately entitled to communicate them, without obligation of confidentiality.

12.2 - Obligations of the Receiving Party

For the duration of the Contract and for an additional period of five (5) years from its expiry or termination, the Receiving Party undertakes to:

• Non-disclosure Not to disclose, distribute, reproduce or publish all or part of the Confidential Information, directly or indirectly, in any form whatsoever, to any third party, without the prior written authorisation of the Disclosing Party.
• Restricted access Allow access to Confidential Information only to those members of its staff, its Affiliates or its subcontractors needing to be aware of it for the strict needs of the performance of the Contract, provided that they are informed of the confidential nature of this information and that they are bound, individually or contractually, by confidentiality undertakings at least as protective as those set out in this article. The Receiving Party guarantees compliance with these obligations by any person placed under its responsibility or acting on its behalf.
• Protection measures Protect and secure Confidential Information against any unauthorised disclosure, by applying, at least, the same level of caution and security as it applies to its own confidential information of the same importance, and in no case a level lower than reasonable measures.
• Limited use Use the Confidential Information only for the purposes of performing the Contract, to the exclusion of any other purpose, except with the prior written authorisation of the Disclosing Party.
• No claim of rights Not to claim, and to prohibit its staff, its Affiliates or its subcontractors from claiming, any intellectual property right over all or part of the Confidential Information of the Disclosing Party, except by prior written agreement of the latter.
• Compliance with notices Preserve and respect the property and confidentiality notices appearing on all documents or media containing Confidential Information.

12.3 - Term and end of obligation

The confidentiality obligations provided for in this article apply for the duration of the Contract and for an additional period of five (5) years from its expiry or termination, for whatever reason.

12.4 - Legal or judicial exceptions

Confidential Information may be disclosed if the Receiving Party is required to do so under a legal provision or a decision of a competent jurisdiction or administrative authority, on condition of:

• Notifying without delay the Disclosing Party of the existence and content of this legal obligation or decision, to the extent permitted by law;
• Implementing all reasonable means to limit the scope of said disclosure or to oppose the public disclosure of the Confidential Information concerned.

Article 13 - Protection of personal data

13.1 - Data controller

The Parties shall in all circumstances comply with the regulations applicable to them in matters of personal data protection, in particular the provisions of the French Data Protection Act No. 78-17 of 6 January 1978 as amended and the GDPR. The Parties undertake, as data controllers for the personal data processing operations they each carry out for their own needs in the context of these GTCSU, to comply with all of their obligations under the GDPR and in particular to provide to the data subjects whose personal data is likely to be processed, the relevant information relating to the protection of their personal data as described in the respective privacy policy of the Parties.

KBINE's Privacy Policy is available at the following link: https://www.kabeen.io/en/legal/privacy. The Customer declares that it has read and accepts all of the terms.

13.2 - Processor

The Parties agree that any processing of Personal Data by KBINE as a processor in the context of the use of the Solution by the Customer and its Users (the "Initial Processing") will be governed by the terms and conditions of the Data Processing Agreement available at the following link: https://www.kabeen.io/en/legal/data-processing-agreement

Article 14 - Commercial reference

KBINE may mention the Customer's name, corporate name, logo or any other distinguishing sign for institutional or commercial communication purposes, on any physical or digital medium, including its website, its commercial presentations, releases, tender response files, or social networks. However, this use is subject to the prior, express and written authorisation of the Customer.

To this end, KBINE undertakes to notify the Customer, by email, of any planned use of the Customer's distinguishing signs, specifying the nature of the medium, the context and the objectives of the communication. The Customer undertakes to respond to this request within a reasonable time. In the absence of a response within thirty (30) business days following notification, the authorisation will be deemed refused.

The Customer retains the right to withdraw its authorisation for the future, by written notification, without this affecting the validity of previous uses.

KBINE undertakes not to exploit these citations or references in a manner likely to harm the Customer's privacy or reputation, nor to use this information on media of a pornographic, racist, xenophobic nature or any other prejudicial medium.

The Customer expressly acknowledges that no remuneration will be due for the exploitation of the citation and reference rights granted herein.

Article 15 - Force majeure

The occurrence of a case of force majeure exonerates the parties from their liability in the non-performance of their obligations.

A case of force majeure constitutes any event beyond KBINE's control which prevents the performance of its service. In particular, cases of force majeure include earthquakes, fire, storms, floods, the blockage of means of transport for any reason whatsoever, total or partial strikes, internal or external to the company, the blockage of telecommunications, the blockage of computer networks, hindering the proper functioning of the Service Provider's company and preventing it from honouring its contractual commitments.

KBINE shall promptly inform the Customer, by registered letter with acknowledgement of receipt, of the impossibility of performing its service due to such a case of force majeure. The suspension of the performance of the service for this reason may in no case be a cause of liability for non-performance of the obligation in question, nor may it lead to the payment of damages or late payment penalties.

As soon as the case of force majeure has ceased, KBINE will inform the Customer of the resumption of its obligation and will use all its means to resume the normal performance of its service as quickly as possible. Any delay in the performance of the service due to this fact, within the limit of a duration of two (2) months, may not give rise to any deduction, penalty or compensation, nor to cancellation of the order. Beyond this period, the order may be cancelled by the Customer, without compensation on either side, by registered letter with acknowledgement of receipt.

Article 16 - Transfer of the GTCSU

The Customer expressly acknowledges that KBINE reserves the right to transfer, by way of assignment, contribution, transfer or any other legal operation, all of its rights and obligations arising from these GTCSU to any third party, whether such transfer is carried out for valuable consideration or free of charge.

In the event that KBINE exercises this right of transfer, it will be released from the performance of its contractual obligations as from the notification of the transfer to the Customer, and may not be held jointly liable to the Customer for the commitments assumed by the assignee.

Furthermore, the Customer may in no case transfer, assign or subcontract its rights or obligations arising from these GTCSU, except with the prior written consent of KBINE.

Article 17 - Applicable law, competent jurisdiction

17.1 - French law

The GTCSU are governed by French law, without application of conflict-of-law rules.

17.2 - Election of domicile

For the performance of these terms, the Customer and KBINE elect domicile at their respective registered offices.

17.3 - Amicable agreement

The Parties shall endeavour to amicably resolve any disputes that may arise between them.

17.4 - Disputes – contestations

Failing an amicable agreement reached within sixty (60) days from the written notification of the dispute relating to the application of these GTCSU, their validity, their interpretation, their performance and more generally any dispute relating to the service, the latter shall be brought before the commercial court expressly designated, where applicable, in the Special Conditions or the Quote signed between the Parties.

Failing such designation, exclusive jurisdiction is granted to the commercial court of KBINE's registered office.

Article 18 - Miscellaneous provisions

18.1 - Independence

The Customer and KBINE are independent entities and the Agreement does not establish any partnership, joint-venture, employer-to-employee, franchise or principal-to-agent relationship between the Customer and KBINE.

18.2 - Cooperation

No provision of these General Terms limits KBINE's obligation to cooperate with valid requests from supervisory authorities.

18.3 - Export regulations

The Customer declares that it is not named on a list of denied parties of the United States government. The Customer does not use the Solution in a country under United States embargo or in violation of any United States export law or regulation.

18.4 - Severability

If any provision of these GTCSU is found to be invalid by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. Waiver of a breach of any provision of these GTCSU shall not constitute a waiver of any future breach of the same provision or any other provision.

For any questions concerning these terms, please contact us at legal@kabeen.io.